James Bryce Osmond v The Queen

Case [2013] VSCA 285

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0075

JAMES BRYCE OSMOND Applicant
v

THE QUEEN

 Respondent

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JUDGES MAXWELL P, PRIEST and COGHLAN JJA
WHERE HELD MELBOURNE
DATE OF HEARING 7 October 2013
DATE OF JUDGMENT 7 October 2013
MEDIUM NEUTRAL CITATION [2013] VSCA 285
JUDGMENT APPEALED FROM DPP v Nguyen & Anor (Unreported, County Court of Victoria, Judge Cotterell, 15 April 2013)

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CRIMINAL LAW – Appeal – Sentence – Armed robbery, attempted armed robbery, theft, common law assault, damaging property and possessing imitation firearm – Total effective sentence of 6 years 2 months’ imprisonment – Non-parole period of 4 years – Sentencing judge erred in ordering the non-parole period to commence after the unexpired portion of a prior sentence – Whether judge erred in the application of the principle of totality – Youthful offender – Real risk of institutionalisation – Leave to appeal granted – Appeal allowed – Re-sentenced to 5 years 8 months’ imprisonment with a non-parole period of 3 years 3 months – Mill v The Queen (1988) 166 CLR 59 applied – Sentencing Act 1991, ss 15, 17.

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Appearances: Counsel Solicitors
For the Applicant Ms E McKinnon Cameron Marshall & Associates
For the Crown Ms F L Dalziel Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

  1. I will invite Coghlan JA to deliver the first judgment.

COGHLAN JA:

  1. The applicant James Bryce Osmond pleaded guilty to the charges set out below and was sentenced as follows on 15 April 2013. 

Charge on Indictment Offence Maximum Sentence Cumulation
1 Theft [Crimes Act 1958 s 74(1)] 10 years [Crimes Act 1958 s 74(1)] 4 months 1 month
2 Possessing an imitation firearm [Control of Weapons Act 1990 s 5AB(2)] 2 years or 240 penalty units [Control of Weapons Act 1990 s 5AB(2)] 8 months 1 month
3 Armed robbery [Crimes Act 1958 s 75A(1)] 25 years [Crimes Act 1958 s 75A(2)] 3 years Base
4 Attempted theft [Crimes Act 1958 ss 74(1) and s 321M] 5 years [Crimes Act 1958 ss 74(1) and s 321M] 12 months 4 months
5 Damaging property [Crimes Act 1958 s 197(1)] 10 years [Crimes Act 1958 s 197(1)] 4 months -
6 Armed robbery 25 years 3 years 6 months
7 Armed robbery 25 years 3 years 6 months
8 Theft 10 years 12 months 3 months
9 Theft 10 years 12 months 3 months
10 Attempted armed robbery [Crimes Act 1958 ss 75A(1) and s 321M] 20 years [Crimes Act 1958 ss 75A(2) and 321P] 2 years 6 months
11 Common law assault 5 years [Crimes Act 1958 s 320] 9 months -
12 Common law assault 5 years 9 months -
13 Theft 10 years 12 months 3 months
14 Attempted armed robbery 20 years 2 years 5 months
Total Effective Sentence: 6 years 2 months’ imprisonment
Non-Parole Period: 4 years’ imprisonment commencing on 3 July 2013
Pre-sentence Detention…

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Details
AGLC
Osmond v The Queen [2013] VSCA 285
Case
[2013] VSCA 285
Decision Date

CaseChat Overview and Summary

In the case of James Bryce Osmond v The Queen, the appellant was convicted of multiple offences including armed robbery, attempted armed robbery, theft, common law assault, damaging property, and possessing an imitation firearm. The Court of Appeal was tasked with determining whether the primary judge had erred in the sentencing process, particularly in relation to the non-parole period and the application of the principle of totality. The appellant's sentence was 6 years and 2 months' imprisonment, with a non-parole period of 4 years, which was to commence after the unexpired portion of a prior sentence. The appellant argued that this arrangement was unjust and that the sentencing judge did not adequately consider his youth and disadvantaged background.

The court had to decide whether the sentencing judge erred in ordering the non-parole period to commence after the unexpired portion of a prior sentence and whether there was insufficient regard for the appellant's youth and background. The court examined the principle of totality, which requires that the cumulative effect of sentences for multiple offences be considered to ensure that the overall punishment is proportionate to the offending. The court also considered the real risk of institutionalisation due to the length of the sentence and the non-parole period. Ultimately, the court found that the sentencing judge did err in the application of the principle of totality, leading to a sentence that carried a real risk of institutionalisation.

The appeal was allowed, and the appellant was re-sentenced to 5 years and 8 months’ imprisonment, with a non-parole period of 3 years and 3 months. The court applied the principle established in Mill v The Queen and took into account the appellant’s age and disadvantaged background, while also reflecting the seriousness of the offending. The court commended the clarity of the submissions made by counsel and found the Crown’s concession to be appropriate and helpful. The leave to appeal was granted, and the sentence was adjusted to mitigate the risk of institutionalisation and to provide the appellant with a more balanced and proportionate sentence.

Orders

Orders of the court

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Background

Background to the litigation

When the structure of the sentence, the individual sentences and the degree of accumulation is looked at, not much complaint can be made about the sentence. It is only in the name of totality that error can be found. The fact of the matter is that the applicant might, from the time he went into custody in July 2012, have to serve a total of just over seven years and that he would not be eligible for parole until he has served a total of 4 years 7 months. There must be in the case of the applicant a real risk of institutionalisation. Ground 2 – Insufficient regard to youth and background This ground could have succeeded only if it could be demonstrated that the sentence was manifestly excessive. In any event, I doubt that this level of disadvantaged background of the applicant can be compared with that of offenders in cases such as R v AWF.[10]In addition it had not been urged on the sentencing judge that she should regard the material in that way.[10](2000) 2 VR 1. Her Honour did have regard to both the applicant’s age and disadvantaged background. It is reasonable to observe that an adult without a similar background would have received a much more severe sentence for this offending. Since I would allow the appeal on ground one, a more detailed analysis of this ground is unnecessary. The applicant is young and this may well be the last chance he has to show that, if he becomes drug free, he can have a more rewarding life in the future to the benefit of both himself and the community. The sentence I propose takes into account the fact that the head sentence and non-parole period must reflect the seriousness of the offending. I propose a sentence in which the non-parole period is reduced by slightly more than the head sentence. I would re-sentence the applicant as follows. I agree. I would only add this. In my opinion, counsel are to be commended for the clarity and succinctness of their oral submissions. I also agree with what Coghlan JA has said about the Crown’s concession. It was, in my opinion, entirely appropriate and of considerable assistance to the Court. I agree, for the reasons given by Coghlan JA, that the application for leave to appeal ought be granted and the appeal allowed. I also wish specifically to associate myself with the further remarks falling from the learned presiding judge.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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